[ad_1]
WASHINGTON — Chief Justice John G. Roberts Jr. has sat in the center seat on the Supreme Court bench since his arrival in 2005. But only this term did he assume true leadership of the court.
He made clear his influence in a pair of stunning decisions on Thursday, joining the court’s liberal wing in one and his fellow conservatives in the other. In providing the decisive votes and writing the majority opinions in cases on the census and partisan gerrymandering, he demonstrated that he has unquestionably become the court’s ideological fulcrum after the departure last year of Justice Anthony M. Kennedy.
The key parts of both decisions were decided by five-justice majorities, and the chief justice was the only member of the court in both.
The two rulings, one a rebuke to the Trump administration and the other a boon to Republicans, was consistent with Chief Justice Roberts’s insistence that politics should play no role in judging. “We don’t work as Democrats or Republicans,” he said in 2016.
Conservatives expressed bitter frustration on Thursday about what they saw as the chief justice’s unreliability, if not betrayal.
“Chief Justice John Roberts disappointed conservatives today — to a degree not seen since he saved Obamacare in 2012 — when he sided with the court’s four liberals to second-guess the Trump administration’s reasons for adding a citizenship question to the census,” Curt Levey, the president of the Committee for Justice, a conservative activist group, said in a statement. “The census decision will surely deepen the impression that Roberts is the new Justice Kennedy, rather than the reliable fifth conservative vote that liberals feared and conservatives hoped for.”
[The Supreme Court’s rulings on gerrymandering and the census have profound implications for American politics. Here’s what the decisions mean.]
On the horizon next term are significant cases — on the Second Amendment, on whether a federal law prohibits discrimination against gay and transgender workers and very likely on abortion — that will help bring Chief Justice Roberts’s new role into sharper focus. But he may not retain the decisive vote indefinitely.
The court’s two oldest members — Justice Ruth Bader Ginsburg, 86, and Justice Stephen G. Breyer, 80 — are members of its liberal wing. If President Trump gets the chance to replace one of them, the court would shift decisively to the right.
The dissenting members of the court in both of Thursday’s cases all had the same criticism — that the chief justice’s analysis was warped by politics.
In the census decision, which at least temporarily stopped the Trump administration from adding a question on citizenship to the forms that will be sent to every household next year, Justice Clarence Thomas suggested that the chief justice had been swayed by the overheated emotions of the day.
“It is not difficult for political opponents of executive actions to generate controversy with accusations of pretext, deceit and illicit motives,” Justice Thomas wrote. “Significant policy decisions are regularly criticized as products of partisan influence, interest group pressure, corruption and animus.”
Justice Thomas may have overstated things — he said judges inclined to distrust the administration were working with a corkboard, a jar of pins and a spool of string to “create an eye-catching conspiracy web” — but he was right that there was a whiff of disdain in Chief Justice Roberts’s majority opinion.
The chief justice is mild, witty, controlled and precise, and he must have little patience for Mr. Trump’s more freewheeling and slashing approach.
During his presidential campaign, Mr. Trump called Chief Justice Roberts “an absolute disaster.” The chief justice did not return fire at the time.
But in an extraordinary exchange in November, he did tangle with Mr. Trump, who had criticized an asylum ruling by saying it had been issued by an “Obama judge.”
The chief justice issued a statement: “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”
In the census decision, Chief Justice Roberts basically accused Wilbur Ross, the secretary of commerce, of lying about why he wanted to add the citizenship question. “The sole stated reason” for adding the question, the chief justice wrote, “seems to have been contrived.”
That willingness to look behind an administration official’s asserted reason for taking an action was at odds with last year’s decision upholding Mr. Trump’s travel ban.
In that case, writing for the court’s five conservatives, Chief Justice Roberts acknowledged that Mr. Trump had made any number of statements concerning his desire to impose a “Muslim ban.” He recounted the president’s call for a “total and complete shutdown of Muslims entering the United States,” and he noted that the president has said that “Islam hates us.”
But the chief justice declined to rely on what Mr. Trump had said.
“The issue before us is not whether to denounce the statements,” Chief Justice Roberts wrote in 2018. “It is instead the significance of those statements in reviewing a presidential directive, neutral on its face, addressing a matter within the core of executive responsibility.”
Last year, Chief Justice Roberts was willing to ignore evidence of an ulterior motive. This year, in the census case, the chief justice had had enough.
“Accepting contrived reasons would defeat the purpose of the enterprise,” he wrote. “If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case.”
The chief justice stuck with his usual allies in Thursday’s second blockbuster, which said judges cannot hear claims of partisan gerrymandering, the practice of drawing election districts to help candidates of the political party in power.
It was the more consequential of the two decisions, and, as a practical matter in the current electoral landscape, it will mostly help Republicans.
Dissenting in the gerrymandering case, the court’s liberals accused the chief justice of refusing to acknowledge political realities.
“Of all times to abandon the court’s duty to declare the law, this was not the one,” Justice Elena Kagan wrote in dissent. “The practices challenged in these cases imperil our system of government. Part of the court’s role in that system is to defend its foundations. None is more important than free and fair elections.”
The chief justice is often said to have conflicting impulses. He is a product of the conservative legal movement, and his voting record reflects that. On issues of racial discrimination, religion and campaign finance, his views are in the mainstream of conservative legal thinking.
In major 5-to-4 decisions, he voted with the majority in District of Columbia v. Heller, the 2008 Second Amendment decision that established an individual right to own guns; Citizens United, the 2010 campaign finance decision that amplified the role of money in politics; and Shelby County v. Holder, the 2013 voting rights decision that effectively gutted the Voting Rights Act.
But the chief justice also considers himself the custodian of the Supreme Court’s prestige, authority and legitimacy.
That puts the chief justice in an impossible situation. A recent essay in The Harvard Law Review by Tara Leigh Grove, a law professor at William & Mary, called it a “legitimacy dilemma.”
If the chief justice always votes with the court’s four other Republican appointees to advance a conservative agenda, he may appear political, raising questions about the court’s legitimacy. But if he takes account of that public perception in deciding how to vote, he may appear to be caving to pressure that is itself illegitimate.
That was the dilemma Chief Justice Roberts faced in 2012, when he voted to save President Barack Obama’s signature legislative achievement, the Affordable Care Act.
Liberals called him a statesman, conservatives a traitor.
In her recent biography, “The Chief,” Joan Biskupic concluded that the chief justice had sacrificed legal rigor for something bigger.
“Viewed only through a judicial lens,” Ms. Biskupic wrote, “his moves were not consistent and his legal arguments were not entirely coherent. But he brought people and their different interests together. He acted, in short, more like a politician.”
[ad_2]
Source link
